Daykin v SAS Trustee Corporation

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST DUNFORD J Friday, 16 FEBRUARY 2001 30087/00 ADAM SHANE DAYKIN v SAS TRUSTEE CORPORATION & ORS JUDGMENT 1 HIS HONOUR: These proceedings, instituted by Summons filed on 5 December 2000, are by way of an appeal from a decision of the Appeal Panel of the Administration Decisions Tribunal ("the Tribunal"), which reversed a decision of the General Division of such Tribunal. The appeal is brought pursuant to s 119 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") which provides for an appeal to the Supreme Court on a question of law against any decision of the Appeal Panel. 2 The proceedings have been instituted in the Administrative Law List of the Common Law Division and a question has arisen whether they were properly commenced or whether they should have been commenced in the Court of Appeal having regard to the provisions of s 48 of the Supreme Court Act 1970 ("the SC Act"). 3 Part 14 Schedule D of the Supreme Court Rules prescribes which matters constitute "administrative law proceedings" and directs that such matters be entered in the Administrative Law List in the Common Law Division. Those proceedings include proceedings under Pt 12 r 4(2) of the Rules which incorporates proceedings under the provisions of the Acts as set out in Pt 1 of Schedule H or mentioned in Pt 2 of Schedule H. Part 1 includes appeals under s 119 of the ADT Act. 4 Those Rules must, however, be read subject to the provisions of the SC Act which includes s 48. It is also worth noting that Pt 14B r 1(a)(iii)(D) refers to appeals in respect of the decisions of a "public officer", but a "public officer" does not include a "prescribed tribunal", which in turn includes a "specified tribunal" within the meaning of s 48 of the SC Act. 5 It follows therefore that although prima facie appeals under s 119 of the ADT Act are properly commenced in the Administrative Law List in the Common Law Division, that is subject to s 48 of the SC Act, and by virtue of that section there are assigned to the Court of Appeal proceedings on appeal and otherwise relating to "specified tribunals". A "specified tribunal" includes "(vii) a body of persons having amongst its number a judge or member, being a body functioning or purporting to function under any Act giving power to a body having amongst its number a judge or member, whether as judge or member or as designated person", and a judge or member is defined by subs (1)(b) as a judge or member of the Land and Environment Court, Industrial Relations Commission, the Dust Diseases Tribunal, the Government and Related Employees Appeal Tribunal, the District Court or the Compensation Court. 6 The ADT Act provides for the Tribunal to consist of a President, Deputy Presidents (who are described as presidential judicial members), non-presidential judicial members and non-judicial members: s 12. Section 17(1) provides that a person is eligible to be appointed as the President only if that person is a Judge of the District Court, whilst Deputy Presidents and non-presidential judicial members may be either judicial officers or legal practitioners of at least seven years standing. An Appeal Panel must include at least two presidential judicial members, i.e. President and/or Deputy President, and one other non-judicial member: s 24(2). In some cases one of the judicial members will be the President, who must be a Judge of the District Court, or the presidential judicial members may be another judicial officer and/or legal practitioners of at least seven years standing. 7 In the present case the Appeal Panel was presided over by his Honour Judge O'Connor, who is a Judge of the District Court, and the question therefore arises whether the Appeal Panel so constituted is a "specified tribunal" within the meaning of s 48 or is not. If it is a "specified tribunal" within the section the proceedings should have been commenced in the Court of Appeal. 8 The question appears to have arisen a number of times but not previously been authoritatively determined. In Allders International Pty Limited v Anstee (1986) 5 NSWLR 47, Lee J set out the various statutory provisions relating to the then Equal Opportunity Tribunal, which were not dissimilar to those relating to the Appeal Panel, and said at 50 that s 48 did not have the capricious consequence that an appeal went to the Court of Appeal if a judge happened to be sitting on the Tribunal, but went to the Administrative Law Division (as it then was) if, although appointed, he happened not to be sitting; and he referred to what he had said in an earlier decision: Hargraves v Trotting Authority of New South Wales (unreported - 25 March 1981); but his Honour then went on to say that no contention had been put forward by any of the parties that the matter should be heard in the Court of Appeal. This is not surprising as the Tribunal on that occasion comprised Miss Loder, who was a judicial member but not a judge, or member of what was then the Workers Compensation Commission. 9 In Jeffrey Button Sales Pty Limited v Robson (1985) EOC 92-145, proceedings were brought in the Administrative Law Division, in a case where the Tribunal was constituted by a judicial member who was not a judge, and Hunt J said: "Any appeal to the Supreme Court thus would be heard by the Administrative Law Division rather than the Court of Appeal".

Once again the matter does not appear to have been argued. 10 Similarly in Secretary of the Department of Health v Jamal (unreported - 18 December 1986), Hunt J again said: "The Tribunal [i.e. the Equal Opportunity Tribunal] must comprise one judicial member and two non-judicial members (s 69M) but, as defined by s 69E, the 'judicial member' may be a person qualified for appointment as a judge of certain courts yet not in fact so appointed. Where a decision or order from which the appeal is brought was made by the Tribunal when its judicial member was not in fact a judge, it is agreed that the appeal is assigned by s 53(3B) of the Supreme Court Act 1970 to the Administrative Law Division rather than by s 48(2) to the Court of Appeal. The decision and order from which the present appeal is brought were made when the judicial member of the Tribunal was not in fact a judge." (My italics.) 11 Similarly, in Durovic v Judge (unreported - Rolfe J - 25 February 1997), again an appeal from the Equal Opportunity Tribunal, his Honour said: "The appeal apparently comes before a single Judge as the Tribunal is not a 'specified tribunal' within the meaning of s 48(1)(a) of the Supreme Court Act 1970, at least in circumstances where the judicial member of the Tribunal is not 'a Judge or member' unless that status is itself relevant to the powers of the Tribunal: Allders International Pty Limited v Anstee" . 12 In all of these cases the Tribunal appealed from was presided over by a "judicial member" who was not in fact a judge or member of one of the courts or tribunals referred to in paragraphs (i) to (v) of s 48(1), and in none of the cases was it argued that the proceedings should have been commenced in the Court of Appeal. 13 The question has been referred to in the Court of Appeal, as far as I can determine, on only two occasions. In Wentworth v Rogers No. 6 (unreported - 10 October 1986), Kirby P discussed the matter at some length, but that was a case where the body appealed from (the Legal Aid Commission) had at one stage been presided over by a Supreme Court Judge (to which no reference is made in s 48(1)). His Honour referred to Hargraves and Allders International and said that having regard to the substance of the complaint and the convenience of leaving the matter in the Administrative Law Division it was not appropriate in the circumstances to review the correctness of the earlier decisions, particularly as it had not been fully argued. 14 In French v The Sydney Turf Club [1999] NSWCA 195, the Equal Opportunity Tribunal had been presided over by a "judicial member" who was not a judge, the proceedings had been commenced in the Administrative Law Division, it was sought to appeal from that decision to the Court of Appeal, and the question arose whether leave to appeal was necessary. The issue was discussed at [36] to [45] where the earlier cases were referred to, but at [45] Giles JA said that he did not consider it necessary to choose between or amongst the various contentions, although he did note at [41] that counsel seemed to agree that the practice in relation to appeals from the Tribunal had been to appeal to the Court of Appeal if a District Court Judge presided over the Tribunal, but to appeal to a single judge if a District Court Judge did not so preside. 15 Although the matter has been left in this state of comparative uncertainty for some time, in view of the establishment of the Administrative Decisions Tribunal including its Appeal Panel it appears to me to be desirable to state a firm view on the appropriate forum, subject, of course, to anything which the Court of Appeal may later say. 16 It appears to me that s 48 conveys a clear legislative intention that appeals from judges of superior or what might be described as middle tier courts, are to be heard by a bench of three judges such as one finds in the Court of Appeal, whereas appeals from bodies which do not comprise or include such judges are to be heard and determined by a single Judge of the Supreme Court in the Administrative Law List. 17 This may, as appeared to Lee J in Allders International, be capricious in one sense, but it is consistent with the general structure of appeals in judicial, as opposed to administrative, matters in that appeals from the District Court, whether from trials on indictment or in civil proceedings, or from the Compensation Court are heard in the Court of Appeal or Court of Criminal Appeal as appropriate, consisting in each case of more than one judge, whereas appeals from magistrates pursuant to Part 5 of the Justices Act 1902 are heard by single judges of the Common Law Division. It is also consistent with what actually happened in the cases referred to above, in all of which except Hargraves the relevant Tribunal had not included a judge and consistent with what was apparently agreed by counsel in French to be the practice. Wentworth v Rogers (No. 6) may be regarded as an exceptional case because of the nature of the issues involved and the convenience of having disputed factual issues determined by a single judge. 18 For these reasons I am satisfied that whenever the Appeal Panel consists of or comprises a Judge of the District Court, it is a "specified tribunal", and an appeal should be taken to the Court of Appeal, whereas if the Appeal Panel does not consist of or comprise such a judge or member in the particular case, the appeal should be commenced in the Administrative Law list of the Common Law Division. Accordingly this appeal from an Appeal Panel which included a District Court Judge, should have been commenced in the Court of Appeal. 19 Section 51 of the SC Act provides that where proceedings which are assigned to the Court of Appeal are commenced in a Division the proceedings will be well commenced, notwithstanding that they have been commenced in a Division; but that the Court of Appeal or the Court in the Division may order the proceedings be removed into the Court of Appeal or, subject to any such order, the proceedings may be continued and disposed of in a Division. The question therefore arises whether these proceedings, having been validly, although wrongly, commenced in this Division, I should permit them to remain in this Division or should order their removal to the Court of Appeal. 20 Having regard to the nature of the issues involved, including the proper exercise of appellate powers under s 113 of the ADT Act, I am of the view that this is not an appropriate matter to remain in this Division, but is an appropriate case for the policy which I perceive in s 48 of the SC Act to take its normal course, and that I should therefore order the removal of the proceedings into the Court of Appeal. 21 I order the proceedings to be removed into the Court of Appeal. I direct the matter to be listed for directions before the Registrar of the Court of Appeal, on a date to be fixed by the Registry. 22 Costs of today's proceedings to be costs in the cause.

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